BEFORE THE COMMITTEE ON FOREIGN RELATIONS UNITED … · (1) WAR POWERS IN THE 21ST CENTURY TUESDAY, APRIL 28, 2009 U.S. SENATE, COMMITTEE ON FOREIGN RELATIONS, Washington, DC. The

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WAR POWERS IN THE 21ST CENTURY

HEARING BEFORE THE

COMMITTEE ON FOREIGN RELATIONS

UNITED STATES SENATE

ONE HUNDRED ELEVENTH CONGRESS

FIRST SESSION

APRIL 28, 2009

Printed for the use of the Committee on Foreign Relations

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COMMITTEE ON FOREIGN RELATIONS

JOHN F. KERRY, Massachusetts, ChairmanCHRISTOPHER J. DODD, Connecticut RUSSELL D. FEINGOLD, Wisconsin BARBARA BOXER, California ROBERT MENENDEZ, New Jersey BENJAMIN L. CARDIN, Maryland ROBERT P. CASEY, JR., Pennsylvania JIM WEBB, Virginia JEANNE SHAHEEN, New Hampshire EDWARD E. KAUFMAN, Delaware KIRSTEN E. GILLIBRAND, New York

RICHARD G. LUGAR, Indiana Republican Leader designee BOB CORKER, Tennessee JOHNNY ISAKSON, Georgia JAMES E. RISCH, Idaho JIM DEMINT, South Carolina JOHN BARRASSO, Wyoming ROGER F. WICKER, Mississippi

DAVID MCKean, Staff DirectorKENNETH A. MYERS, JR., Republican Staff Director

(II)


C O N T E N T S

Page

Baker, Hon. James A., former Secretary of State, Houston, TX, accompanied by Hon. Lee H. Hamilton, president and director, Woodrow Wilson Inter-national Center, Washington, DC ....................................................................... 4

Prepared statement of Mr. Baker ................................................................... 6 Response of Mr. Hamilton to question submitted for the record by Sen-

ator Russell D. Feingold ............................................................................... 32 Christopher, Hon. Warren M., former Secretary of State, Los Angeles, CA ...... 7

Prepared statement .......................................................................................... 9 Responses to questions submitted for the record by Senator Russell D.

Feingold ......................................................................................................... 30 Kerry, Hon. John F., U.S. Senator from Massachusetts, opening statement ..... 1 Lugar, Hon. Richard G., U.S. Senator from Indiana, opening statement ........... 2

APPENDIX

National War Powers Commission Report ............................................................ 33

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(1)

WAR POWERS IN THE 21ST CENTURY

TUESDAY, APRIL 28, 2009

U.S. SENATE, COMMITTEE ON FOREIGN RELATIONS,

Washington, DC. The committee met, pursuant to notice, at 10:05 a.m., in room

SD–419, Dirksen Senate Office Building, Hon. John F. Kerry (chairman of the committee) presiding.

Present: Senators Kerry, Feingold, Kaufman, Lugar, Corker, and Barrasso.

OPENING STATEMENT OF HON. JOHN F. KERRY, U.S. SENATOR FROM MASSACHUSETTS

The CHAIRMAN. The hearing will come to order. Today we have the privilege of hosting three of our Nation’s most

distinguished statesmen, and they are here to discuss one of the most vital questions that comes before our democracy, the question of how America goes to war.

Secretaries Baker and Christopher and Chairman Hamilton, we’re very grateful to you for joining us today, and we’re very grateful to you for the work you’ve put into trying to find a prac-tical solution to this complex problem that has dogged us for dec-ades now. Your experience in government and your firsthand knowledge of this issue and its application make your testimony before this committee today particularly valuable. We look forward very much to hearing your views.

Let me just share a couple of quick thoughts. We all understand that what brings us here is the fact that there’s a fundamental ten-sion in the way that America decides to go to war. The President is Commander in Chief of the Armed Forces, while Congress has the power to declare war. But, how those constitutional powers interact has been the subject of considerable debate these last years.

Uncertainty over Congress’s role in two successive wars—Korea and then Vietnam—led to the passage of the War Powers Resolu-tion in 1973. I think it’s fair to say it was significantly a reaction to America’s longest war, one that pulled the country apart and left many questions about responsibilities and Presidential decisions.

The resolution, which today’s witnesses recommend repealing, has been controversial ever since it was enacted over President Nixon’s veto. The 1973 resolution represented Congress’s best effort to try to clarify and make concrete its role in the decision to go to war. That resolution required that the President consult with Congress prior to, and on a regular basis after, U.S. forces were


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deployed. More controversially, the law required that the President withdraw our forces within 60 days of their deployment into com-bat, absent specific congressional authorization or an extension of the deadline by Congress.

This approach raised important questions. Some believe that im-position of a deadline for withdrawal inappropriately constrained the Executive and projected uncertainty to enemies. Others more sympathetic to legislative power in the decisionmaking argued that allowing the President to go to war for 60 days or longer without authorization is an indefensible abdication of Congress’s preroga-tive under the Constitution; a prerogative of Congress to declare war.

What is clear to all is that the 1973 War Powers Resolution has simply not functioned as intended. Presidents since Nixon have questioned the statute’s constitutionality. None have complied by filing a report that would trigger a 60-day deadline for congres-sional reauthorization.

Over the years, there have been various efforts within Congress, including by this committee, to amend the War Powers Resolution. Nonetheless, the fundamental issue has remained unresolved.

The National War Powers Commission consciously avoided trying to resolve the basic constitutional debate, and also avoided trying to define the contours of each branch’s powers. And I must say, I respect the pragmatism of that approach.

The Commission’s proposal is, instead, the War Powers Consulta-tion Act of 2009. It would repeal the 1973 War Powers Resolution and provide a new framework for interaction between Congress and the President. The proposed statute would require that the Presi-dent consult with a newly formed Joint Congressional Committee prior to ordering the deployment of U.S. Armed Forces into, ‘‘sig-nificant armed conflict’’ or, under certain circumstances, within 3 days of deployment. The statute would also create a mechanism to ensure that both Houses of Congress vote on a particular military action within 30 days of that deployment.

In their work on this issue, our witnesses today have struggled to grapple with the exigencies of a global struggle against terrorism and the changing nature of America’s military involvements, which today obviously look very different than they did in 1973. As one would expect of an effort from a group of statesmen who have tack-led some of the world’s most intractable conflicts, this is a thought-ful and a formidable effort, and it is very much worthy of this com-mittee’s further, and the Congress’s further, consideration.

I’m sure that our witnesses will go into more detail and specifics of their proposal, but, again, let me just thank each of them for their contribution, not just to this particular work, but to our coun-try’s work throughout their public service.

And it’s my pleasure to turn to the ranking member, Senator Lugar.

OPENING STATEMENT OF HON. RICHARD G. LUGAR, U.S. SENATOR FROM INDIANA

Senator LUGAR. Well, thank you very much, Mr. Chairman. As you mentioned, the committee meets today to discuss impor-

tant questions about the respective roles of the President and the


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Congress in decisions to use force. And we’re really very fortunate to have very dear friends with us today, Secretary of State Jim Baker and Warren Christopher, and my colleague in the Indiana delegation for so many years, Congressman Lee Hamilton. Each of them has unique insights into these issues, both from experience in government, and from their study as members of the National War Powers Commission. We welcome them to the committee and look forward to their testimony.

Sending members of the United States military into harm’s way is perhaps the most significant decision our Government can make. We know from long experience that a military mission is more likely to be successful if it is broadly supported by the American people. Joint actions by the President and the Congress in author-izing the use of force can play an important role in building and expressing such support. In addition, both allies and enemies will be more convinced of the determination of the United States to achieve its objectives for which the force is being used if those ob-jectives are understood to be broadly supported by both branches.

Under our Constitution, decisions about the use of force involve the shared responsibilities of the President and the Congress, and our system works best when the two branches work cooperatively in reaching such decisions. While this is an ideal toward which the President and Congress may strive, it has sometimes proved to be very hard to achieve in practice.

Today’s hearing gives us an opportunity to consider the frame-work in which decisions about the use of force are made, and whether there are ways in which it might be improved. Questions of how best to harmonize the roles of the President and the Con-gress on the use of force have proved vexing since the founding of the Republic. The Framers of the U.S. Constitution designated the President as Commander in Chief of the Armed Forces, but en-trusted to the Congress the authority to declare war.

In the period following the Vietnam war, the Congress passed the 1973 War Powers Resolution in an effort to regularize Execu-tive/congressional cooperation on the use-of-force decisions, and, in particular, to ensure an appropriate role of the Congress in such matters. It provides requirements for Presidential consultation with, and reporting to, the Congress on issues related to the use of force, and a requirement that the President terminate uses of armed force not specifically authorized by the Congress within the timeframe specified by the resolution.

The War Powers Resolution has not proven to be a panacea, and Presidents have not always consulted formally with the Congress before reaching decisions to introduce U.S. force into hostilities, and may have objected to the assertion that inaction by Congress can compel the termination of a military action initiated by the President. The Congress has not always taken up legislation autho-rizing or expressing disapproval of Presidential uses of force. Both Presidents and Members of Congress have voiced dissatisfaction with the resolution’s operation and practice.

Interaction between the President and the Congress related to the War Powers Resolution has also been affected by inherent am-biguities. In today’s world, many potential military actions are very small scale, having a very limited purpose or target terrorists or


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other nonstate combatants. The recent rescue operation mounted against the Somali pirates is an example, and combined all three of these conditions. Does every movement of the military ordered by the Commander in Chief that might lead to some use of force require congressional consultations?

Ambiguity also exists about what constitutes adequate notifica-tion and consultation. On April 14, 1986, for example, I was called to the White House at 4 p.m. along with other Senate and House leaders. We were informed that, 2 hours earlier, United States war-planes had taken off from airbases in the United Kingdom headed for targets in Libya. They were due to strike that country at about 7 p.m. During the ensuing 21⁄2-hour meeting, we received a full briefing and engaged in a detailed conversation with President Reagan and national security officials on the bombing operation and its implications. In my judgment, this meeting constituted acceptable consultation, given the need for secrecy and the possi-bility that the planes could have turned around had the President encountered strong opposition from the group assembled. But, some commentators believed the meeting fell well short of the require-ments for full congressional consultation.

The report of the National War Powers Commission proposes a new statute to replace the War Powers Resolution. Under the pro-posed statute, the President would be required to consult with a newly created Joint Congressional Consultation Committee, in most cases before ordering the deployment of United States Armed Forces into significant armed conflict. The statute would also require both Chambers of Congress to hold a timely up-or-down vote regarding any significant armed conflict in which the Presi-dent introduces U.S. forces. The proposed statute further provides for the President to consult with, and report to, the Congress regu-larly during the course of significant armed conflicts in which the United States forces are engaged.

We look forward the testimony of our witnesses about the issues which the Commission has grappled with in formulating this pro-posal, and ways in which they believe their proposed approach would improve collaboration between the President and Congress on decisions relating to the use of force.

I thank the chairman again for calling the hearing. I look for-ward to our discussion.

The CHAIRMAN. Thank you very much, Senator Lugar. Again, we welcome you. None of you are strangers to this room

or this table. I must say, looking out at you, I was looking at you and remarking that none of you seem to have changed. And I’m not sure if you think that, but certainly from this side of the dais, whatever you’re imbibing down there in Texas, California, and else-where, seems to sit well.

Mr. Secretary Baker, do you want to lead off.

STATEMENT OF HON. JAMES A. BAKER, FORMER SECRETARY OF STATE, HOUSTON, TX, ACCOMPANIED BY HON. LEE H. HAMILTON, PRESIDENT AND DIRECTOR, WOODROW WILSON INTERNATIONAL CENTER, WASHINGTON, DC

Mr. BAKER. Mr. Chairman, thank you very much. The CHAIRMAN. Thank you.


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Mr. BAKER. We are very appreciative of the committee enter-taining this hearing today.

The CHAIRMAN. Your microphone? Could you just press the but-ton?

Mr. BAKER. First, we thank you for holding this hearing. We thank Ranking Member Lugar for holding this hearing, members of the committee. It really is a privilege and an honor for us to be back in this room and to be before you.

As you have quite accurately pointed out, we’re here to discuss the report of the National War Powers Commission, which Sec-retary Christopher and I cochaired, and on which your former con-gressional colleague Lee Hamilton served so very ably as a valu-able member.

Let me, if I might, start with a little background on the Commis-sion and the problem that you have quite accurately pointed out that it deals with, and then Secretary Christopher will outline our proposed new statute.

Two years or so ago, Chris and I were approached by the Miller Center at the University of Virginia to cochair an independent bi-partisan commission to consider this issue that has bedeviled the legal experts and government officials since the Constitution was framed—the question of how our Nation makes the decision to go to war. Of course, we all know the Constitution gives the President the powers of Commander in Chief, and it gives the Congress the power of the purse, but also specifically the power to declare war. History, though, indicates that Presidents and Congresses have often disagreed about the scope and extent of their respective roles in the decision to go to war. And the Supreme Court has consist-ently shied away from settling the constitutional issue.

So, it was evident to us after a few meetings of our Commission that what we really needed to try and come up with was a prag-matic and practical solution to this conundrum. As we put together the Commission, it was important, we thought, that we have a very wide range of perspectives and voices, both political and from a policy standpoint. And so, our Commission includes legal experts, former congressional staffers, former White House staffers, and former military leaders. The 12-member Commission, if you look on—I think you all have a copy of our report—at the names on the front page there, the 12-member Commission is equal parts Demo-crats and Republicans.

After 14 months of study, we concluded, as you stated, Mr. Chairman, that the central law governing this critical decision— that is, the War Powers Resolution of 1973, which was passed over a Presidential veto—is ineffective and that it really should be replaced with a better law. It should be repealed and replaced with a better law.

The 1973 resolution’s greatest fault, I suppose, is that most legal experts will tell you that it is unconstitutional, although I’m quick to add that the Supreme Court has never expressly ruled on that point.

We happen to believe that the rule of law, which is, of course, a centerpiece of our American democracy, is undermined and it is damaged when the main statute in this vital policy area is regu-larly questioned or ignored.


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The resolution has other problems. It calls for the President to file reports of armed conflicts, and then it uses these filings to trig-ger an obligation for the President to remove troops within 50— within, sorry, 60 or 90 days if Congress has not affirmatively approved the military action. This, of course, purports to allow Congress to halt military campaigns simply by inaction. Unsurpris-ingly, no President, Democrat or Republican, has ever filed reports in a way that would trigger the obligation to withdraw forces. As a result, the 1973 statute has been honored more in the breach than by its observance.

Recognizing this, others have suggested amending or replacing the flawed law, but no such proposal has ever gotten very far, typi-cally because most of them have sided too heavily with either the President or the Congress.

A common theme, however, in all of these proposals and that runs through them, the importance of meaningful consultation— meaningful consultation—between the President and the Congress before the Nation is committed to war.

Our proposed statute would do exactly that, promote meaningful discussion between the President and Congress when America’s sons and daughters are to be sent into harm’s way, but it expressly does so, Mr. Chairman, in a way that does not limit or prejudice either the executive or the legislative branches’ rights or ability to assert their respective constitutional war powers. Neither branch is prejudiced by what we are proposing. And, in fact, we think that both branches and the American people will benefit from it.

Now, before I turn the microphone over to Secretary Christopher, let me first say how rewarding it has been to work with this fine gentleman and this able statesman and this dedicated public serv-ant. It has, of course, been equally rewarding to once again be working with my former cochairman on the Iraq Study Group, Lee Hamilton, and your former colleague up here in the Congress.

So, Chris, you want to pick up from there? [The prepared statement of Mr. Baker follows:]

PREPARED STATEMENT OF JAMES A. BAKER III, FORMER SECRETARY OF STATE, HOUSTON, TX

Chairman Kerry, Ranking Member Lugar, members of the committee, it is an honor to be with you today.

We are here to discuss the report of the National War Powers Commission, which Chris and I cochaired and on which your former congressional colleague, Lee Ham-ilton, served as a very valuable member.

Let me start with background on the Commission and the problem it dealt with. Secretary Christopher will then outline our proposed new law.

Two years ago, Chris and I were approached by the Miller Center at the Univer-sity of Virginia to cochair an independent bipartisan commission to consider an issue that has bedeviled legal experts and government officials since the Constitu-tion was framed—the question of how our Nation makes the decision to go to war.

Our Constitution gives the President the powers of Commander and Chief. The Congress has, of course, the power of the purse and the power to declare war.

But history indicates that Presidents and Congresses have often disagreed about their respective roles in the decision to go to war. And the Supreme Court has shied away from settling the constitutional issue.

It was evident that we needed a practical solution to this conundrum. As we put together the Commission, it was important that we have a wide range

of perspectives and voices. And so our Commission includes legal experts, former congressional members, former White House staffers and former military leaders. The 12-member Commission is equal parts Democrats and Republicans.


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After 14 months of study, we concluded that the central law governing this critical decision, the War Powers Resolution of 1973, is ineffective, and should be repealed and replaced with better law.

The 1973 resolution’s greatest fault is that most legal experts consider it unconsti-tutional, although the Supreme Court has never ruled on it. We believe that the rule of law, a centerpiece of American democracy, is undermined and damaged when the main statute in this vital policy area is regularly questioned or ignored.

The resolution has other problems. It calls for the President to file reports of armed conflicts and then uses these filings to trigger an obligation for the President to remove troops within 60 or 90 days if Congress has not affirmatively approved the military action. This purports to allow Congress to halt military campaigns by inaction.

Unsurprisingly, no President—Democrat or Republican—has filed reports in a way that would trigger the obligation to withdraw. As a result, the 1973 statute has been honored more in the breach than by observance.

Recognizing this, others have suggested amending or replacing the flawed law. But no such proposal has gotten very far, typically because most of them have sided too heavily with either the President or Congress.

A common theme, however, runs through all of these efforts: The importance of meaningful consultation between the President and Congress before the Nation is committed to war.

Our proposed statute would do exactly that—promote meaningful discussion between the President and Congress when America’s sons and daughters are to be sent into harm’s way.

But it expressly does so in a way that does not limit or prejudice either the execu-tive or legislative branches’ rights or ability to assert their respective constitutional war powers. Neither branch is prejudiced by what we are proposing.

And in fact, we think both branches and the American people will benefit from it.

Before I turn the microphone over the Secretary Christopher, let me first say how rewarding it has been to work with this fine gentleman, able statesman, and dedi-cated public servant.

STATEMENT OF HON. WARREN M. CHRISTOPHER, FORMER SECRETARY OF STATE, LOS ANGELES, CA

Mr. CHRISTOPHER. Thank you very much, Mr. Chairman, ranking member, members of the committee.

My testimony will follow up briefly on Secretary Baker’s state-ment. I appreciate those kind things that Secretary Baker had to say about me. Without going on about it, let me just say it’s a lot more pleasant working with Secretary Baker than it was working against him, and I’ve had both experiences.

The statute that we propose is really quite straightforward. It establishes a joint bipartisan congressional consultation committee consisting of the leaders of the House and the Senate and the chairs of the relevant committees—including this committee, Intel-ligence, Armed Forces.

Under the proposed statute, the committee is provided with a permanent professional staff and access to relevant intelligence information. This is a new provision, and, I think, one that’s quite salutary.

The statute requires that the President consult with this com-mittee before deploying U.S. troops into ‘‘any significant armed con-flict,’’ which is defined as combat operations lasting, or expected to last, more than a week. Now, for purposes of this statute, ‘‘con-sultation’’ means providing an opportunity for a timely exchange of views, not just notification.

Within 30 days after the armed conflict begins, Congress is re-quired to vote up or down on a Resolution of Approval. If the Reso-lution of Approval is defeated, any Senator or Representative may


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file a Resolution of Disapproval. A Resolution of Disapproval would have the force of law, of course, only if it’s presented to the Presi-dent and signed by him, or if it’s passed over the President’s veto. However, if a Resolution of Disapproval does not survive the veto, Congress can express its opposition through internal rules.

Mr. Chairman, I recognize that many of the advocates of congres-sional power argue that Article I, Section 8 of the Constitution puts the decision to go to war exclusively in the hands of Congress by giving Congress the power to declare war. On the other hand, oppo-nents of the Presidential authority point to the fact that the Presi-dent is the Commander in Chief under the Constitution. They say that the Framers wanted to put the authority to make war in the hands of the Government official who had the most information and the ability to execute.

Although both sides of this longstanding argument have good points to make, I would just make three points about these argu-ments.

First, no consensus has emerged from this debate over the last 200 years. Nobody has won this longstanding argument.

Second, I think it’s become fairly clear that only a constitutional amendment or a decisive Supreme Court opinion is likely to resolve this debate, and neither of these is likely to be forthcoming any-time soon. The courts have turned down war powers cases filed by more than 100 Members of Congress, either on the grounds that they are political questions or that the plaintiffs in those actions lacked standing to sue.

Third, whatever our Commission might have felt about this debate—and we discussed it for a long time, as Secretary Baker said—we recognize that we could not resolve this longstanding issue. And the last thing we wanted to do as a commission was to file yet another report on who is right or wrong, and have it gather dust on the library shelves.

Therefore, in drafting this statute, our Commission decided delib-erately not to try to resolve this longstanding debate. Indeed, our proposed statute says that neither branch, by supporting or com-plying with this act, shall in any way limit or prejudice its right or ability to assert its constitutional war powers.

Instead of trying to call balls or strikes, we unanimously agree that any legislative reform must focus on practical steps to ensure that the President and the Congress consult in a meaningful way before going to war. We believe that, among all the various alter-natives—and we certainly talked about a lot of them—this pro-posed statute best ensures consultation. We believe it’s a signifi-cant improvement over the 1973 resolution, and it’s good for the President, the Congress, and for the American people.

Now, from the standpoint of the Congress, the statute gives it a much more significant seat at the table when our Nation is decid-ing whether or not to go to war, provides not only a seat at the table, but it gives a permanent staff to the committee and access to all relevant intelligence information. It requires real consulta-tion, not just lipservice.

Now, in my experience, the seasoned views of the congressional leaders constitute a very vital resource for the President in his decisionmaking process. Indeed, it’s very healthy, I think, for the


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President to hear the independent opinions of people who don’t work for the President. I know how confining it is when the Presi-dent only talks to people who happen to work for him.

For the President, of course, this law that we’re proposing eliminates a law that every President since 1973 has found to be unconstitutional and has largely ignored. The statute provides a mechanism for consultation with the Congress, and it identifies a leadership group with whom the President should consult.

I know, down in the White House, they have often had a ques-tion as to who the President should consult with. Sometimes I think the President has consulted with those who are most likely to agree with him, and we think that’s probably not a healthy situ-ation.

From the standpoint of the American people, the statute will really enhance the prospect of consultation between Congress and the President on matters of war, and make it a regular thing. This is something that public opinion polls have consistently indicated, for more than 70 years, the American people have wanted. We really believe the American people deserve something better than a law that’s ineffective and has been largely ignored for 70 years.

Mr. Chairman, Mr. Ranking Member, and Senators, thank you very much for hearing us, and we look forward to trying to respond to any questions that you may have.

[The prepared statement of Mr. Christopher follows:]

PREPARED STATEMENT OF WARREN CHRISTOPHER, FORMER SECRETARY OF STATE, LOS ANGELES, CA

Mr. Chairman, Ranking Member, and members of the committee, my testimony will follow up briefly on Secretary Baker’s statement.

Without going on about it, let me just say that it is a lot more fun working with Secretary Baker than working against him. He is an extraordinary American leader.

The statute we propose is straight forward. It establishes a bipartisan Joint Con-gressional Consultation Committee consisting of the leaders of the House and the Senate, and the chairs of the key committees. Under the proposed statute, the com-mittee is provided with a permanent professional staff and access to relevant intel-ligence information.

The statute requires the President to consult with the Congressional Consultation Committee before deploying U.S. troops into any significant armed conflict, which is defined as combat operations lasting or expected to last more than a week. If the need for secrecy precludes prior consultation, the President is required to consult with the committee within 3 days after the conflict begins. For purposes of the stat-ute, consulting means providing an opportunity for a timely exchange of views, and not mere notification.

Within 30 days after the armed conflict begins, Congress is required to vote up or down on a resolution of approval. If the resolution of approval is defeated, any Senator or Representative may file a resolution of disapproval. A resolution of dis-approval will have the force of law only if it is passed by both Houses and signed by the President, or if the President’s veto is overridden. However, if the resolution of disapproval has not survived the President’s veto, Congress can express its oppo-sition through its internal rules.

Mr. Chairman, I recognize that many advocates of congressional power argue that article 1, section 8 of the Constitution puts the decision to go to war exclusively or primarily in the hands of Congress by giving Congress the power to declare war. They say that by this provision, the Framers of the Constitution stripped the execu-tive branch of the power to commence war that the English King enjoyed.

On the other hand, proponents of Presidential authority point to the Executive power and Commander in Chief clauses in the Constitution. They say that the Framers wanted to put the authority to make war in the hands of the government official who had the most information and the ability to execute; and they point to recent history as proof of the President’s predominance.


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A whole forest of trees has been felled to publish writings on this debate. Although both sides make compelling arguments, only three propositions hold true:

(1) No consensus has emerged from the debate in 200 years; no one has ‘‘won’’ the argument.

(2) Only a constitutional amendment or decisive Supreme Court opinion will resolve the debate; neither is likely forthcoming anytime soon, and courts have turned down war powers cases filed by as many as 100 Members of Congress.

(3) Despite what I or my fellow commission members may feel about the debate, we cannot resolve it, and the last thing we wanted to do was offer yet another opinion on who was right or wrong.

Thus, in drafting the statute before you, our Commission deliberately decided not to try to resolve the debate. Indeed, our proposed statute says ‘‘neither branch by supporting or complying with this act shall in any way limit or prejudice its right or ability to assert its constitutional war powers, or its right or ability to question or challenge the constitutional war powers of the other branch.’’

Instead of trying to call balls or strikes, we unanimously agreed that any legisla-tive reform must focus on practical steps to insure that the President and Congress consult in a meaningful way on the decision to go to war. We believe that, among all available, practical alternatives, the proposed statute best accomplishes that result, is a significant improvement over the 1973 resolution, and is good for the Congress, the President, and the American people.

From the standpoint of Congress, the statute gives a more significant seat at the table when our Nation is deciding whether or not to go to war. It provides not only a seat at the table, but a permanent staff and access to all relevant intelligence in-formation. It calls for genuine consultation, not mere lip service. The seasoned views of congressional leaders constitute a vital resource for the President in his decision-making process. It is very healthy for the President to hear the independent opin-ions of people who don’t work for him.

For the President, the proposal eliminates a law that every President since 1973 has regarded as unconstitutional. It provides a mechanism for his consultation with the Congress, and it identifies the leadership group with whom he should consult.

From the standpoint of the American people, this statute will enhance the pros-pect of cooperation between the Congress and the President on matters of war. This is something that public opinion polls have consistently indicated Americans have wanted for the past 70 years.

The American people deserve something better than a law that is ineffective and has been largely ignored for 70 years. The new statute achieves that result.

Mr. Chairman, we have sought to set a careful balance between the Congress and the President on this matter of grave importance. Neither the strongest advocates of congressional power nor those of Presidential power are likely to be completely happy with our proposal, but we think that this is a reflection of the balance that we have sought to strike.

The CHAIRMAN. Thank you very much, Mr. Secretary. Mr. Chairman, I understand you’re not going to make a state-

ment, is that correct? Mr. HAMILTON. No. The CHAIRMAN. OK, but submit to questions? Well, let me thank each of you for this. Let me emphasize, if I

can, how important this is. I think my colleagues here understand that, while the Nation’s attention is not focused on this issue today, and while the Klieg lights and the sort of hot breath of the media is not intense here at this moment, everybody in this room, particu-larly those at this table, understand the implications and how im-portant it is to be here now, trying to figure out the best path through this, rather than in the middle of the crisis, when all the attention is focused on it, but when you have the least ability to be able to do something about it.

So, this is the moment, and I want to thank each of the partici-pants. I also want to thank Governor Baliles and the Miller Center for their support of this project. It’s a very important contribution to our Nation’s discourse. And, without objection, I intend to put the entire War Powers Commission Report into the record, because


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I think this is a record that’s going to be studied and analyzed as we go forward, and we want to lay the predicate for our thinking and for whatever legal proceeding might one day occur as a con-sequence of this. So, we are laying a record with respect to all of that at this time. [EDITOR’S NOTE.—The War Powers Commission Report can be found in the Appendix on page 33 at the end of this hearing.]

The CHAIRMAN. In your proposal, you set out types of operations that are specifically excluded; three, in particular: Actions taken to repel attacks, or prevent imminent attacks on the United States; two, limited acts of reprisal against terrorists or states that spon-sor terrorism; and three, missions to protect or rescue American citizens and military or diplomatic personnel.

Now, many of our operations today—military operations—are focused on our counterterrorism efforts, and I’d just like to try to clarify, if we can, a little bit, sort of, what your thinking is here.

Under what circumstance do you envision these exceptions allow-ing a President to order military strikes against state sponsors of terrorism without any consultation with Congress? Do you envision that? For instance, there are certain states engaged in proliferation activities today; one might envision some sort of counterterrorism preemptive effort with respect to them, and I wonder if you’d com-ment on that.

Mr. BAKER. Thank you, Mr. Chairman. The exclusions or exceptions that are listed—and you noted three

of them; there are some others—operate—the President would be free to undertake those types of actions without prior consultation, without satisfying the requirements of our proposed statute. But, once those actions ripened into a significant armed conflict—that is, once those actions extended for more than 7 days—the statute would be triggered, there would have to be consultations and then continuing consultations, as the statute requires.

The CHAIRMAN. So, is ‘‘significant armed conflict’’ defined by the amount of time or by the size and scope of the operation?

Mr. BAKER. It’s defined by the—it requires combat operations, and it requires the expiration of 7 days. So, I think I would say the amount of time. But, it is not just 7 days during which combat operations are taking place. If the President knows, or has reason to believe, that a particular operation will last more than 7 days, the statute is triggered. Now, that’s difficult, of course, because you can’t always get inside a President’s head. But, it’s more, really, the time, but there is a requirement that the operations be combat operations as opposed to just preparations therefore.

Mr. HAMILTON. Mr. Chairman—— Mr. CHAIRMAN. Lee. Mr. HAMILTON. Mr. Chairman, you want to contrast that with

the War Powers Resolution, which uses the term ‘‘hostilities’’ and is very inadequately defined. Definitions, of course, are extremely difficult in this area, and we didn’t want to overdefine terms. We think we’ve struck the right balance here, but obviously that’s our judgment.

The CHAIRMAN. Can you—and you are correct, Mr. Secretary, I— those are several—those are three of a number of exclusions, and


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I don’t want to make it sound like those were exclusive. But, the President has to consult with the Joint Committee prior to the con-flict unless there’s a need for secrecy or other emergent circum-stances precluding that. Can you give us a sense of what the—what would qualify as ‘‘emergent circumstances’’ that would relieve the President of the duty for predeployment consultation?

Mr. BAKER. Well, I think the ranking member gave us a good example of one, the air strike on Libya, where secrecy was critical. There would be others—that’s a separate provision, Mr. Chairman, of course, from the exclusion provision and exemption provision. There is one separate provision—I think it’s 4(c)—that says, if there is a need for secrecy to protect the lives, for instance, of American servicemen, then the President can begin his consulta-tion 3 days after ordering or beginning the operation. That’s a sep-arate provision, of course.

Under the ones that you initially read off, the general exclusions and exemptions, those are—there would be no requirement to con-sult there before those actions were undertaken, but, once they had gone on for 7 days, then there would be an obligation to consult. A good example might be, from your experience, training oper-ations, perhaps, in Vietnam that ripened into something a heck of a lot more than training operations. If those training operations ripened into combat operations that extended for more than 7 days, the statute would be triggered.

The CHAIRMAN. So, does the consultation component of this depend on the good faith of the President, or is there any kind of guillotine, is there any sort of——

Mr. BAKER. To some extent, when you’re talking about requiring more meaningful consultation, there has to be good faith, and it depends upon good faith, I think, on the part of the President, but also on the part of the Congress, the people being consulted.

I would make the point, Senator Kerry, that many people would argue that the President could do, anyway, some of the things that are listed in here as exemptions; that is, take actions to protect American possessions or embassies or citizens abroad. I think a lot of people would argue whether the President has that right any-way. Under our statute, he would have that right, but he—but, it wouldn’t extend ad infinitum. He could—if he took action to protect an embassy or American citizen abroad, and it ripened into a com-bat event that lasted more than 7 days, then the statute’s triggered and there would have to be ongoing consultation.

Mr. HAMILTON. And the important thing there is that the Presi-dent must consult in that situation. He doesn’t have an option. If he’s going to commit troops for a significant armed conflict, he shall consult, which is——

Mr. BAKER. But, not obtain approval. No requirement in here for approval, but there’s a mandatory requirement of consultation.

The CHAIRMAN. Right, but there is, then, a mandatory require-ment for a vote within 30 days——

Mr. BAKER. That’s correct. Mr. HAMILTON. Correct. The CHAIRMAN. So you are triggering a requirement for Congress

to engage, which has been significantly absent with respect to war powers. I mean, you know, it seems to me that the constitutional


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mandate, ‘‘Congress shall declare war,’’ does not require Congress to declare war.

Mr. BAKER. No. The CHAIRMAN. It simply gives them the power to declare war,

if they choose to do so. Correct? Mr. BAKER. That’s correct. The CHAIRMAN. And, in effect, Congress has complicated this sig-

nificantly, not the least of which, for instance, in the longest war in our history, Vietnam, where they refused to ever step up and either do the purse or make the declaration.

Mr. BAKER. That’s correct, sir. And we think, in something as im-portant and serious as this, and particularly given the fact that the polls over the last 50-plus years have showed that the American people really want both the Congress and the President involved when the Nation sends its young men and women into battle, we don’t think it’s unreasonable to say Congress, after 30 days, should take a position on the issue.

Now, if a vote—if a Resolution of Approval does not pass, our statute provides that any Member of the House or Senate could introduce a Resolution of Disapproval. If that Resolution of Dis-approval passes, it would not have the force of law unless the con-stitutional requirement of the presentment clause was met and it was presented to the President for his signature or veto. If he vetoed it and Congress overrode the veto, then, of course, you would have an actionable event of disapproval.

The CHAIRMAN. All of which, in total, I believe, actually—and this is what I think is very significant about your proposal and one of the reasons why I think it threads the needle very skillfully— is that you actually wind up simultaneously affording the President the discretion, as Commander in Chief, and the ability to be able to make an emergency decision to protect the country, but you also wind up empowering Congress. And, in fact, subtly, or perhaps not so subtly, asking Congress to do its duty. I think that’s not insig-nificant at all, and I think you’ve found a very skillful way of bal-ancing those without even resolving the other issues that have previously been so critical, in terms of the larger constitutional authority, one way or the other.

Mr. BAKER. Thank you, sir. The CHAIRMAN. So, I—— Mr. BAKER. May I just make one final—— The CHAIRMAN. Absolutely. Mr. BAKER. [continuing]. One other statement? I don’t mean to

be doing all the talking, here. We think, as Chairman Hamilton said, I think, over on the

House side, this proposal presents an outstanding opportunity for bipartisanship. We talk a lot about bipartisanship these days. Here’s a really good example of an opportunity to achieve that.

The disagreements in this area have been disagreements between the branches, not so much disagreements between the par-ties. And this is something that is—it’s practical, it preserves the ability of each branch to continue to make their constitutional arguments, but gives us a pragmatic and practical way of going for-ward, and it should not be a matter of partisan political difference.

The CHAIRMAN. I couldn’t agree more.


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Senator Lugar. Senator LUGAR. Well, thank you, Mr. Chairman. In my opening comments, I mentioned this date of April 14,

1986, because it framed several of the issues that we’re discussing today. It was a pragmatic judgment by President Reagan to call this group together, which looks very much like the sort of group that you’re suggesting. They—I think it encompassed the chairmen and ranking members of Foreign Relations and Intelligence, and that was—and Armed Services—and that was true of House Mem-bers. They may not all have been there. But, I put the thing into my statement, because I have a picture of us sitting around the table. This is not anecdotal, there’s sort of documentary evidence of who was at the meeting.

And it was a rather awesome experience to hear the President, and then he turns to the Secretary of Defense, describing the fact that there are aircraft in the air and they are taking action because some European countries at the time were making it difficult to fly over on a mission of this variety, so it was taking them a while to get there, and that’s why the 3-hour lapse.

And also, it was interesting that there was enough anxiety or dif-ference of opinion that the conversation went on for 21⁄2 hours, dur-ing which you have the sense that these planes are approaching.

I remember coming back to my office and hearing, sort of break-ing into the 7 o’clock newscast, the thought that aircraft were bombing Libya. And I said, ‘‘Well, that’s right. That’s what’s hap-pened.’’

Now, in this particular instance, however, there was this degree of consultation and responsibility. None of us knew what Libya would do, what kind of retaliation and what the aftereffects might be. As it turned out, there are not immediate ones, so the 7-day rule, or the 30-day rule, probably would not have kicked in, which was sort of a mission-accomplished at that point.

But, the thing I want to raise is, Libya was a nation-state. The attack really was on areas very close to the President—or the Great Leader of the country, and, in fact, some of his relatives were killed, as I recall, in the process.

The problems that we have talked about in this committee re-cently revolve around such thoughts as al-Qaeda might be not only in the mountains of Pakistan, but in Somalia or in Yemen or, as we have found out in attacks on our embassies before.

Now, one of the values of this, as I’ve thought through this, is that this Joint Committee possibly might meet with some regu-larity, as opposed to just simply on the occasion of a Libya situa-tion in which the President or those responsible could say, ‘‘Now, this is very confidential, but, in fact, a war on terror is being fought in several fronts. There’s a conspicuous one out in Afghani-stan and Pakistan, and we talk about that every day, because it’s very important, but what all of you folks in Congress need to understand is that our intelligence services are very good, they’ve ferreted out where al-Qaeda may be. These people are fully as capable of launching or planning an attack on the United States as the people were in camps in Afghanistan earlier. And therefore, they might say, ‘‘We’re going to take action,’’ or they might describe continuous action they are taking, in which various members of


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al-Qaeda may be losing their lives or losing something in the proc-ess. And the ramifications of that are not really clear in the host country, which may be a failed state, This doesn’t negate the fact we may deal with nation-state war in the future, but many would describe the more probable course in the war on terror as dealing with, if not al-Qaeda, other cells that are a threat to ourselves, our allies, to world stability, a much more difficult thing, perhaps, to define. And this is why I find attractive the idea of this committee.

Now, the dilemma, I think, for Chairman Kerry and—as chair-man of this committee, for example, would be, well, this new com-mittee has staff, and it has some jurisdiction on some of the most difficult issues. How does that work out with the staff of our com-mittee, bipartisan staff that works all the time on these issues, or Armed Services or Intelligence? You know, you may say, ‘‘Well, that’s for you folks to work out. You have—you’re going to be serv-ing as chairman or ranking member on both of these committees, and you already have certain staff members on your own staff, quite apart from the committee, and so forth.’’ I’m just curious, did you have any discussion in your group about, as a practical matter, how this works out with regard to committee staff, who has juris-diction, where—which committee do we really discuss this? Do we take it up in the joint meetings, regularly with the President, or so forth, or—is our responsibility really to our entire committee, to a certain degree of public hearing, so that we’re all up to date on this? Do you have any feeling about these internal workings of how this might work?

Mr. CHRISTOPHER. Senator Lugar, our Commission talked quite a lot about the new forms of war and nonstate actors. We had a number of witnesses—I think almost 50 witnesses—among them, Dean Harold Koh, who I understand you’ll be hearing this after-noon in his nomination. And we understood that, and one of the reasons we put in section 4(a) of the statute was to meet that exact problem. We say, ‘‘The President is encouraged to consult regularly with the Joint Congressional Consultation Committee regarding significant matters of foreign policy and national security.’’

So, we certainly don’t mean to preempt the jurisdiction of this committee or other committees, but I think this new committee would become the major forum for consultation on issues of war and peace, and that’s why we have given this committee a separate professional staff, an ongoing professional staff that can be very useful in the future, as well as access to all relevant intelligence.

Sometimes, it seemed to me that Congress did not have as fully adequate access to information as sometimes they have down in the White House. So, I think we understood that very well, and we understood that these committees would continue to have their jurisdiction, but a major jurisdiction would be in this new joint committee, which had a staff that would be working on it on a rather continuous basis.

Senator LUGAR. Well, I appreciate that answer. I think—maybe they’re just my own personal reflections, but as our Nation approached the current war with Iraq, I think the feeling that I had during the summer vacation, as I heard statements by Vice President Cheney or others, was that we might be going to war before we got back in the fall. Now, I was reassured when we had


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a meeting with President Bush around the table with many of the people who will be in this committee that you’ve suggested, and he said, ‘‘We’re going to the United Nations. Secretary Powell is going to testify.’’ And so, that was somewhat reassuring we were not going to war, since we were going to the United Nations. But, then things deteriorated. And before long there were at least thoughts that we were going to war sooner than later, because the weather in Iraq gets warmer, and therefore, if you were going to do some-thing, it would be better to do it in the spring than in the summer, if you were to be effective with a strike of that sort.

Now, this sort of came through the rumor mill. There was no committee in which some of us might have asked the President, ‘‘Is that true? Is the fact—in a military situation, that this is going to have to work out at this particular point?’’ I just reflect on this anecdotally, because these are very large decisions that finally involved us for a long time, and the need to have this consultation and some access to the President and the Secretaries, and what have you, for many of us, we feel is very important, our respon-sibilities.

But, I ask the question, just in behalf of our committees, as they are constituted, while this committee of leaders is meeting, that— after all, we were also trying to draw together, ultimately, if we were going to have votes on this subject, votes in the committee, votes in the Congress, relevant debate of all of us, as well as those sitting around the table—and I’m, in my own mind’s eye, trying to think how all of this progresses.

Mr. BAKER. Well, Senator, if I might chime in here, Section 5(b), if you’ll take a look at 5(b) of our proposed statute, says that it is our view that the committees of jurisdiction for the Resolution of Approval or Disapproval should be the Senate Foreign Relations Committee in the Senate and the House Foreign Affairs Committee in the House. So, we suggest the lead role for these two com-mittees.

Senator LUGAR. They’re mentioned specifically in this section. Mr. BAKER. They are mentioned specifically in 5(b), and they

are—and it is our recommendation that they have the lead role. Mr. HAMILTON. Senator Lugar—— Mr. BAKER. That doesn’t answer all of your questions, about—— Senator LUGAR. No, but that’s—— Mr. BAKER. [continuing]. How do you—— Senator LUGAR. [continuing]. Explicitly you’ve tried to meet that. Mr. BAKER. Yes, sir. Yes, sir. Mr. HAMILTON. Senator Lugar, my impression is that the deci-

sion to go to war involves a lot more than foreign policy; it involves intelligence, and it involves, certainly, the Armed Forces. And you have enormous responsibilities in this committee, extending far beyond the questions of war and peace. Your committee, this com-mittee, would not in any way be diminished by this proposal. But, what we try to do is to put in the room with the President the key players in all of the areas that would be involved in making a deci-sion to go to war—Intelligence, Armed Services, Foreign Relations, Foreign Affairs in the House—and, of course, the ranking member and the chairmen of these key committees would serve on the con-sultative committee, so there would be good coordination.


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This is, as I think you said in your statement, the most impor-tant decision government makes, whether or not you go to war. And you want to get it right, as best you can. And I think you have a better chance of getting it right if you have all perspectives brought to bear and available to the President for consultation.

Senator LUGAR. Thank you very much. The CHAIRMAN. If I could just follow up on that quickly, and I

apologize, Senator Kaufman, but—3(c) ‘‘says the Joint Congres-sional Consultation Committee consists of.’’ You’ve referred to it prior to that, but this is where you create it, so to speak. And it simply says who it will be made up of. And then, the chairmanship and the vice-chairmanship will rotate.

My question is, Would it be—I interpret it as a purely con-sultative committee for the sole purpose of—not with an ongoing standing obligation under the rules of the Senate; in other words, requiring staff and an enormous amount of work. Now, maybe you interpret that differently, but would it be better to clarify that in some way, that its purpose will be solely consultative with respect to the issue of armed conflict, without staff?

Mr. BAKER. Well, the Congress, of course, could do that. The CHAIRMAN. I’m just wondering what your thought is on that.

It strikes me that that may be a way of dealing with some of Sen-ator Lugar’s concerns, which I think are legitimate.

Mr. BAKER. That would be, I would think, Mr. Chairman, subject to the rules of the House and of the Senate; and whatever those— whatever the wishes of the two bodies were would be—would be, of course, I’m sure, embodied in the final legislation. It was not our intent to sit up here and write the——

The CHAIRMAN. Write all the details. Mr. BAKER. [continuing]. Details of those rules. But, we did ex-

pressly think it was worthwhile recommending that the leadership in this area remain with House Foreign Affairs and Senate Foreign Relations.

Mr. HAMILTON. I think the chairman—Senator Kerry, you’ve got it exactly right. This is not a legislative committee. You’re not au-thorizing money. You are consulting with the President—that’s your sole purpose—on the question of going to war. And so, it’s a very limited purpose; obviously hugely important, but very limited.

The CHAIRMAN. Well, we need to clarify that, because paragraph 4(h) actually gets specific about staff and what we might or might not do. So, I think this is worthy—this is exactly why we have the hearing, and it’s a good thing to explore.

Senator Kaufman. Senator KAUFMAN. Thank you, Mr. Chairman. I think this—

there is—as the panel said, there is no important—more important issue facing the Congress than how we deal with going to war, and I—having served this place for a long time, it’s the single most dif-ficult decision that a Member of Congress makes, and I’m sure it’s the most difficult decision a President makes.

The War Powers Act. I showed up in the Senate just about the same time as the War Powers Act, and it’s been like a rugby foot-ball that’s been kicked around for 36 years. And I think that—I can’t think of better people to try to get at the heart of this than the people on this panel. And we’re very, very fortunate to have


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you here and working on this thing. And I am very much in sym-pathy with your proposal. I think consultation is a good idea.

But, if there’s an—if the War Powers Act is a 300-pound gorilla in the room, there’s a 1,000-pound gorilla in the room, and that is declaration of war, beyond the war powers. So, we decide we have the War Powers Act, but at some point the Congress act. And clearly we’ve not—we’ve only declared war five times in our his-tory, and the last one was the Second World War. Secretary Chris-topher, you said there were discussions about war, declaration of war, and I just think I would be making a dereliction of duty if I didn’t ask the three of you, kind of, your opinion on what we should do—how we deal with this declaration-of-war problem, which is— we just don’t do it, and we probably should, and I’d just like your thoughts.

Mr. CHRISTOPHER. The Congress has decided, apparently, Sen-ator, to go the route of authorization to conduct military operations, and that’s taken the place of a declaration of war, and seem to give the President all the authority he feels he needs to go ahead. So, the declaration of war may well have fallen into disuse. And whether that’s fortunate or unfortunate, I think that’s the reality of where we are.

And so, we’re trying to provide a certainty here that there’s con-sultation, even if there is not an issue about the declaration of war. So, we provide for this consultation whenever there are significant military actions contemplated, whenever there is combat action lasting longer than 7 days, without regard to whether or not there has been a declaration of war or a motion for a declaration of war.

Mr. BAKER. Congress has, in one way or another, authorized every action, I think, Senator Kaufman, in the last 50 years, with the exception of Grenada, Panama, and Kosovo, where there was not express authorization.

Senator KAUFMAN. But, are you comfortable with the idea that we—I’m not saying we can do—probably need a constitutional amendment to change it—that essentially we have this perception that we’ve never been—everybody knows we’re at war, but no one says we’re at war. Does that bother you, though? I mean, you deal with international leaders. Is that a problem?

Mr. BAKER. Well, I don’t think there is—it was not a problem, in terms of the conflicts that I was involved in, certainly not the first gulf war. Everybody knew that was a war, including—and all the foreign leaders treated it as such when we talked to them about it. So, I don’t—I’m not sure—I would imagine that there are a lot of—there are a number of other arcane provisions in the Con-stitution that don’t have ready application today.

And so, I don’t—I don’t know that a lot is lost. If the Congress authorizes the action, in one way or another, is it really magic for them to do it by way of a declaration of war? I don’t know.

Senator KAUFMAN. OK. And I would follow up on the chairmen and ranking members. I think the staff question is an interesting question. When you have, you know, staff in the Foreign Relations Committee, Armed Services Committee, they’re studying this every day, they’re up on what’s going on. To have another staff group off to the side that then meets, what you’re going to have is a meet-ing—consultative meeting, the Senators are going to bring their


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own staff from their own committees. It just kind of gets more peo-ple in to the room and more people in the decision, which, as you have said, is the most important decision you make.

Mr. BAKER. You know, following up on what Chairman Hamilton said, it may be—it may be preferable for the people on the Joint Consultative Committee, the chairmen and ranking members of the relevant committees and the leadership of the House and Senate, to bring their own personal staffs and use them, although what we were seeking to provide here is enough support so that the Con-gress would feel that it has a more equal place at the table. And I think at least from my own view—and maybe Secretary Chris-topher and Chairman Hamilton have a different view—I thought there was—that it was primarily oriented toward providing infor-mation to that Joint Consultative Committee; intelligence informa-tion, particularly.

Mr. HAMILTON. Senator, to address your previous question, I think one of the advantages of the bill that we’re proposing here is that it builds into the process broader support for the military action. Everybody agrees that the country’s better off, and the President is better off, if he has broad support. Today, a President can commit military forces, really, without congressional involve-ment, and usually, of course, the Congress comes along and sup-ports the President, but that’s not always going to be true; it may be true most of the time.

But, what happens here is, the President notifies the Congress. The Congress must act. To be blunt about it, in almost every case I can imagine, the Congress is going to support the President. It may be possible that it would be otherwise, but not likely because Presidents are able to carry the country on a national security issue, because they’re the only ones that have the voice to reach all the people.

Therefore, one of the things you want to do is to build as broad a support base as you possibly can for that action. And I think this provides the framework to do it.

I can well imagine some Members of the House, I’m sure no Members of the Senate, would not want to vote on it. But, it’s im-portant, we think, that they do vote on it and that the Congress get on record, for the action or against the action, as they choose. The result, I think, as a practical matter, will be that a President will go into military action—lead the country into military action— with much broader support than otherwise might be the case.

Mr. CHRISTOPHER. Senator, let me follow up with just a thought or two on your very thoughtful question.

It seems to me that the joint committee that we propose is a way for the President to talk to all the Members of Congress, not just one committee or another committee. It’s a conduit for him to speak to all 535 members, which he lacks right now, and that staff would enable him—enable this committee to really get to the bot-tom of the President’s request, and not have the information flow be dominated by what’s known in the NSC down at the White House.

Mr. HAMILTON. That’s a very important point. Presidents today do not know with whom to consult. Five hundred thirty-five mem-


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bers. They know, of course, a few of them they need to consult with.

Here, you provide a clear group of people with whom the Presi-dent should consult, built into law, and a Member of the House or the Member of the Senate cannot complain, as they usually do, ‘‘I wasn’t consulted.’’ They have voted for a mechanism for the Presi-dent to consult with the Congress. And they can’t complain, then, if the mechanism is followed.

I think it’s very important for a President to be able to know, ‘‘With whom do I consult on this question?’’—and not just do it hit or miss because Senator Kerry or Senator Lugar are key players. There are a lot of key players in the Congress. And this provides a President with a focal point for consultation.

Senator KAUFMAN. I think it’s an excellent proposal, and I think it’s been interesting to sit here and watch, in the absence of real affirmation of the War Powers Act or the declaration of war, there’s a kind of a kabuki theater that goes on, where the President, before they go to war or goes into action, says, ‘‘I have the power. I can do this. I don’t need you in the Congress to do it.’’ But, in every single case, what have they done? They’ve come to the Con-gress, because of the point that they need that broad support. So, the system works, and I think it works well. We do—but, I couldn’t agree with you more, I think knowing who to consult with, people understanding what their responsibilities are, is always good, no matter what kind of organization you have. So, I think this is espe-cially good, and I think that what you’ve come up with—I think the staff thing is something that we just—you know, we should take a hard look at.

Thank you, Mr. Chairman. The CHAIRMAN. Thank you, Senator Kaufman. Senator Corker. Senator CORKER. I want to thank all of you for long years of pub-

lic service and continuing to help us through these things, and cer-tainly for your help in this particular issue. So, I have some—just some specific questions.

In the event of the actionable event of disapproval, where the Congress says, ‘‘We disapprove of war taking place,’’ and the Presi-dent—and even in the case—and I know this is very unlikely, because, Chairman Hamilton—the fact is that Congress generally does support the President in matters of this type. Sometimes they go on longer, and sometimes they lose that support. But, since we’re not wrestling with the constitutional issue of who really has the authority, there still—is there still a remainder conflict there if the President decides, ‘‘Look, I’ve declared war, and whether Congress overrides me with more than 67 percent,’’ or whatever— we still have that conflict, constitutionally, do we not, with this solution?

Mr. BAKER. You’re always going to have that, Senator. Unless you get a constitutional amendment or unless you get the Supreme Court to rule on the matter, there’s no other way to resolve the constitutional problem. But, it would be——

Senator CORKER. And—— Mr. BAKER. [continuing]. Very difficult for a President, if the

Congress voted a Resolution of Disapproval, he vetoed it, and they


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passed it over his veto, it would be extraordinarily difficult for him to continue to support the military action politically within the country. When you lose—and, of course, the will of the American people is the final arbiter of our foreign policy in a democracy such as we enjoy. Once he loses that, he’s going to be in trouble. So, it’s the political imperative that would then kick in, but you will not have a resolution, you’re quite right, of the underlying constitu-tional problem.

Senator CORKER. So, what we’re really creating here is sort of the code of conduct that will exist between Congress and the Presi-dent. It really is not going to have the effect of law. Is that correct?

Mr. BAKER. Oh, it would have the effect of law, I think. That’s what we have in mind. It would be a statute that would be on the books. It could be challenged, I suppose, constitutionally, ex post facto, by either the—somebody in the Congress, but, you know, we’ve had many cases where Members of Congress have filed suit against the President, and the courts won’t entertain the suit. Or, it could be challenged by the President, saying, ‘‘I don’t care wheth-er they overrode my veto of the Resolution of Disapproval. I’m going forward anyway.’’ Very risky business for the President.

Senator CORKER. So, let’s—you want to say something? Mr. CHRISTOPHER. I just wanted to say that if there was a Reso-

lution of Disapproval passed by both Houses, and even if the Presi-dent was able to avoid a veto and not have it overridden, neverthe-less, the Congress could then, through its internal rules, have their will expressed. For example, Congress, I suppose, could have a rule that if there was a Resolution of Disapproval approved in both Houses, that thereafter there could be a point of order if there was any military appropriation. Congress has a great deal of power, of course, in the fiscal sense, so they can express their will. If there was a Resolution of Disapproval that either the President signed or was passed over his veto, that would be true even to a greater degree and Congress could express its will through failure to make appropriations.

Senator CORKER. So, we’re sitting here today, and as we’re sit-ting here, there are drones flying over Pakistan. And when the intelligence is appropriate and we actually know a target is zeroed in on, we’re dropping Hellfire missiles on top of living rooms or whatever we might call where folks are occupied today. So, that’s happening as we’re sitting here. That’s in the public domain. Everybody understands that. So, explain to me exactly, since we know that’s ongoing, and it’s been ongoing for a long time, how does that fit into this particular scenario that’s been laid out?

Mr. BAKER. There are a number of exclusions and exemptions, Senator Corker. Some of those, the chairman mentioned, that might cover the situation you’re talking about, actions taken by a President to repel attacks or to prevent imminent attacks on the United States, its territorial possessions, its embassies, its con-sulates, or its Armed Forces abroad; limited action of reprisal against terrorists or states that sponsor terrorists; covert oper-ations. Some of this stuff that’s going on perhaps has been author-ized as a covert operation. Those are not covered by the statute, unless, as I said early on, they ripen into a significant armed con-


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flict by virtue of having a continuing combat operation for more than 7 days.

Senator CORKER. So, to get back to Senator Lugar’s question about Somalia and Yemen and lots of places where, ‘‘al-Qaeda’’ is and exists, actions like that, that continue to be surgical in nature, that don’t necessarily involve lots of troops, if you will, those types of actions can continue ad infinitum without any types of action by Congress.

Mr. BAKER. Well, the only thing that’s required under this stat-ute of a President, to begin with, is consultation. So, no approval is necessary. Simply consultation. Those things could continue until they would ripen into a significant armed conflict, by virtue of a, I think, continuing combat operation for more than 7 days.

Senator CORKER. So, if we’re moving down the spectrum to that, one of the exclusions also is the safety of our troops——

Mr. BAKER. Right. Senator CORKER. [continuing]. That—so, it’s hard to imagine

many armed conflicts taking place in areas like that, which appears to be our greatest threat today—I mean, it seems that the types of wars we’ve had in the past are changing somewhat—so, it seems to me, if we were to—going to go into Somalia or Yemen or Pakistan, which even is more immediate—if we were to go into that kind of conflict, the safety of our troops would always be an issue, it seems, and especially in the surgical types of operations that we’ve had. So it seems like, in many cases, per the way this is drafted, the President would actually consult 3 days after it took place, at which time we’re semiengaged.

Mr. BAKER. Right. Senator CORKER. And I think that’s where Congress finds itself

many times. It’s hard to undo an engagement that already has men and women, that we don’t want to see harmed, in harm’s way. Is that correct?

Mr. BAKER. That’s correct. I think that’s correct. Mr. CHRISTOPHER. Senator, it’s difficult to get into this refined

definitional issue in this kind of a hearing. I suppose it might be argued that some of the actions in Pakistan at the present time would be covered by the resolutions after 9/11 which authorized the President to take action against al-Qaeda and other terrorist groups. I’d say that’s a very difficult definitional issue. There will always be difficult definition of issues as to what involves combat operations lasting longer than 7 days. But, after working on this issue for a long time, that was the best we could do to find some definition that had some meaning for the future.

Senator CORKER. Well, I think the contributions that have been made are outstanding, and I thank you for coming before our com-mittee and doing this work. I think that what it also does is, raises lots of issues for us to think through as we try to refine it.

I would just reiterate, just to be the third person to mention this—I think, to the extent you establish staff with a consultative group, I think it does, in fact, give the President, on one hand, one place to go. I think, in the process of giving the President one place to go, I think that the other committees of jurisdiction end up sort of becoming even more irrelevant, which we’re already—I mean, I—in fairness, this committee’s pretty irrelevant as it relates to


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those kinds of actions anyway. That’s just the way it is. I’m not complaining. But, it seems to me that this committee, with staff, could end up creating a situation where Armed Services, Intel-ligence, Foreign Relations even become less relevant in the process. That could be one of the byproducts. I understand why, in fact, you did it, to make the knowledge at that consultative time equal, as much as possible. It’s never going to be equal to the administrative branch, because they just—look, they have the tools and—and should have the tools, OK—but, I think there’s a—there’s a balance there that one ought to think about, and I wonder whether we’d be better off having specific individuals in each of these committees that are on the committee staff of Foreign Relations, of Armed Services, of Intelligence, that are—that make up—that are specifi-cally aligned or part of that consultative group. I think that’s a much better way of doing it. Otherwise, Chairman Kerry, you know, I—I think, in essence, you and Senator Lugar become far less relevant in the process.

So, anyway, thank you very much. I see that my time is up. It looks like somebody might want to say something.

Mr. HAMILTON. Senator, may I say that I think these staff mem-bers really are an internal matter, that your judgment may be bet-ter than ours on the Commission, and we would recognize that.

With regard to the definitional problems, you cannot define pre-cisely everything that might occur. You just can’t do it. And we wrestled a lot with the definitions. And we did the best we could. And we did not want to overdefine anything. But, at the end, it seems to me, what is really important here is that we require meaningful consultation. That’s what’s really important. And I think you can, to be blunt about it, just get lost in the definitions. You’re trying to define the undefinable, in effect. And so, while attention has to be paid to those—and I don’t want to denigrate that effort—you have to understand that you cannot get precise definitions for all of these possible engagements across a wide spec-trum.

At the end of the day, what you really have to focus on is, you’ve got a situation today where there is no requirement for a President to consult with Members of Congress on this issue. And we’re say-ing, ‘‘Mr. President, you must consult.’’ And that, to me, is the overwhelming point.

Mr. CHRISTOPHER. Mr. Chairman, I wonder if I could use Senator Corker’s question to make a broader comment.

The CHAIRMAN. Absolutely. Mr. CHRISTOPHER. When we finished our discussions in the com-

mittee, we had an important decision to make. Should we just make it a recommendation, put out a report like this, or should we try to draft a statute? And we felt it was more likely to be prac-tically useful to draft the statute.

Having done the draft, we don’t have any great pride of author-ship and we would be glad to work with Senators or their staff to try to perfect it and find some better ways to deal with these issues.

I think we were right in trying to draft the statute so you’d have something concrete before you, but, as I say, this cannot be the


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final word, and the Congress will work its will, and we’ll work with you so you can work your will.

The CHAIRMAN. Well, thank you, Mr. Secretary. I don’t think it’s a—frankly, as complicated as maybe some peo-

ple think it sounds, but I’m—I think the power of this is, No. 1, that you require the consultation. But, it’s also equally as powerful that you require Congress to step up after a period of time and take a position.

And, frankly, both serve all of our interests. I mean, the—you know, the term ‘‘significant armed conflict,’’ including any oper-ation that either lasts 7 days or that the President knows is going to last 7 days—so, he comes to you, and, in the consultative proc-ess, says, ‘‘Look, this is going to take a few weeks. It’s a tough, big operation,’’ so you know that you’re in that posture. But, it also requires us to apply a certain amount of practical common sense and reasonableness standard here.

I can easily see what’s happening—I mean, we’re not at war with Pakistan. I don’t think, by anybody’s definition, we’d say we’re at war with Pakistan. We are at war in Afghanistan against al-Qaeda and Taliban efforts, et cetera, that are supportive of al-Qaeda. And—but the actions in Afghanistan—in Pakistan are sort of cross- border, that clearly would fit into either paragraph 1 or paragraph 2 of the limitations—all right, not paragraph 1 or 2, but those par-ticular two limitations. And I think a reasonable standard applied to that finds that pretty quickly.

What’s important here is that we resolve something we haven’t been able to do, which is get Congress to act. I mean, that’s pretty significant. And it’s in the interest of any President to consult, because a President who doesn’t consult and doesn’t have the sup-port of Congress isn’t going to be able to sustain this for very long, and then we’re all weakened as a consequence of that.

So, I think that, again, you know, we can work out the details of it, but I think the consultative piece—you know, if we’re con-sulting as a group and it is specified who the President is going to consult with, we’re going to bring our existing staff, either from this committee, Carl Levin, John McCain, et cetera, from Armed Services, Intelligence people. We’re all going to consult, anyway, because this is big stuff. It’s important stuff that has lives at stake and the interests of the country. So, I think the staff thing is the least of our issues. I think, just keeping it clean and simple and setting it up so you require the consultation, and then have this vote structure, is a very significant step forward, because we’ve been at absolute gridlock on this issue for 35, 40 years now—30 years.

Senator CORKER. If I could respond to Secretary Hill, I want to say that, from my perspective—and I appreciate what he’s saying, ‘‘no pride of ownership’’—I think the offering of legislative language is a huge contribution. I think, otherwise—and I think the fact that you’ve done that actually allows us to think through some of these details that otherwise we wouldn’t. So, I thank all three of you, and I certainly appreciate your being here today.

Senator KAUFMAN. Mr. Chairman, I’d just—— The CHAIRMAN. Senator Lugar and I want to thank you for pro-

tecting our relevancy here. We’re particularly grateful.


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Senator CORKER. Well, I will say this, that I don’t think the For-eign Relations staff, because of the way we deal with foreign aid, deal with other kinds of things, just willy-nilly passing out program after program, and not really looking at eliminating the ones that we feel are less—I think we do, in fact, render ourselves very irrel-evant on some of these things. And I know that you want to change that, and I——

The CHAIRMAN. Appreciate the—— Senator CORKER. [continuing]. Appreciate it. Senator KAUFMAN. Mr. Chairman, just one other comment, and

that is, you know, like, for instance, a covert action has to be ap-proved by the Intelligence Committee, so I think one of the things we can do on this—and it’s not as big a problem as I think you think it is, because the Congress does have power in a lot of these areas, and it’s our job to go through and find out where different Congress committees have to approve different actions by the President, and we all know that one of the big things is the power of the purse strings. I mean, eventually——

Mr. BAKER. Right. Senator KAUFMAN. [continuing]. They’ve got to get the appropria-

tions approved. So, this—think this is an excellent, excellent pro-posal, and I think when you look at it in the total of the Congress’s responsibility and the Congress’s powers in this, wrestling with the President, I think this is going to turn out to be something that’ll be—the definitional problems are not as great as they may sound.

Mr. BAKER. May I make one point, Mr. Chairman, on relevancy? I think this proposal of ours—now, of course, I’m biased, but—I think this offers an opportunity for this committee to take the lead on a matter that would enhance the relevancy, Senator Corker, of this committee. You have a statute in this area, which is a joke. It is observed more in the breach than in the observance. And at the very least, that is not good in a nation of laws, that our pri-mary statute in this area is observed more in the breach than in the observance.

So, if we can replace that with something that’s workable and practical and pragmatic, that enhances consultation between the branches, that alone, I think, will help the relevancy of the com-mittee, if this were the movant committee in doing that.

The CHAIRMAN. Senator Feingold, thanks for your forbearance for this little dialogue. We appreciate it.

Senator FEINGOLD. Thank you, Mr. Chairman. Obviously, we’re so fortunate to have such an exceptionally dis-

tinguished panel. And thank you for all your work on this subject. I’d like to use some of my time to just make a statement and

then ask a couple of questions. As we continue to grapple with the profound costs of rushing into

a misguided war, it is essential that we review how Congress’s war powers have been weakened over the last few decades, and how they can be restored.

The war in Iraq has led to the deaths of thousands of Americans and the wounding of tens of thousands, and will likely end up cost-ing us a trillion dollars. What if we had had more open and honest debate before going to war? What if all the questions about the administration’s assertions had been fully and, to the extent


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appropriate, publicly aired? So, clearly any reforms of the War Powers Resolution must incorporate these lessons and foster more deliberation and more open and honest public dialogue before any decision to go to war.

And I appreciate that attention is being drawn to this critically important issue, which, of course, goes to the core of our constitu-tional structure. It’s a conversation that we need to continue to have.

But, I am concerned that the proposals made by the Baker-Chris-topher Commission cede too much authority to the executive branch in the decision to go to war. Under the Constitution, Con-gress has the power ‘‘to declare war.’’ It is not ambiguous in any way.

The 1973 War Powers Resolution is an imperfect solution. How-ever, it does retain Congress’s critical role in this decisionmaking process. The Commission’s proposal, on the other hand, would re-quire Congress to pass a Resolution of Disapproval by a veto-proof margin if it were unhappy with the President’s decision to send our troops into hostilities. That means, in effect, that the President would need only one-third of the Members, plus one additional Member of either House, to continue a war that was started unilat-erally by the President. Now, that cannot be what the Framers in-tended when they gave to the Congress the power to declare war.

Since the War Powers Resolution was enacted, several Presidents have introduced troops into battle without obtaining the prior approval of the Congress. The campaigns in Granada and in Pan-ama, are a few examples. Neither of these cases involved imminent threats to the United States that justified the use of military force without the prior approval of Congress. The simple solution to this problem would be for the President to honor the Constitution and seek the prior approval of Congress in such scenarios in the future.

And, while the consultation required by the War Powers Resolu-tion is far from perfect, I think it is preferable to the Commission’s proposal to establish a consultation committee. If this bill had been in place before the war in Iraq, President Bush could have gone— could have begun the war after consulting with a gang of 12 Mem-bers of Congress, thereby depriving most of the Senators in this room of the ability to participate in those consultations as we did in the runup to the Iraq war.

The decision to go to war is perhaps the most profound ever made by our Government. Our constitutional system rightly places this decision in the branch of government that most closely reflects the will of the people. History teaches that we must have the sup-port of the American people if we are to successfully prosecute our military operations. The requirement of prior congressional author-ization helps to ensure that such public debate occurs and tempers the potential for rash judgment. Congress failed to live up to its responsibility with respect to the decision to go to war in Iraq. We should be taking steps to ensure it does not make this mistake again. We should be restoring this constitutional system, not fur-ther undermining it.

Mr. Baker, part of the premise of the Commission’s finding is that several Presidents have refused to acknowledge the constitu-tionality of the War Powers Resolution. And I note that, of course,


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in practice, most do honor the resolution. In your view, does the President’s Commander in Chief authority give him the authority to ignore duly enacted statutes?

Mr. BAKER. Duly enacted statutes? Not in my view. On the other hand, there has been—you said ‘‘most Presidents,’’ Senator Fein-gold. All Presidents have refused to acknowledge the—or, all Presi-dents have questioned the constitutionality of the War Powers Resolution.

Senator FEINGOLD. Right. Mr. BAKER. Both Democrat and Republican. Senator FEINGOLD. Right. I simply said ‘‘several Presidents

refused.’’ Mr. BAKER. Yes. Senator FEINGOLD. Right. But, most have honored the resolution,

in practice. Mr. BAKER. Well, that’s not really quite accurate, sir. They

send—they file reports in keeping with—the language is ‘‘in keep-ing with,’’ but never has one President filed a report ‘‘pursuant to’’ the War Powers Resolution.

Senator FEINGOLD. Well, I—and, nonetheless, I appreciate your answer to the basic question, and it seems to me that much of the ambiguity you attribute to the War Powers Resolution would be resolved if future Presidents simply abided by the resolution. That would help solve the ambiguity.

Mr. Hamilton, before the Iraq war, every Senator had the oppor-tunity to at least review the intelligence assessments on Iraq, par-ticularly the October 2002 NIE. I concluded that there was insuffi-cient evidence to justify the decision to go to war. Under your bill, wouldn’t the full Congress have even less access to the intelligence supporting the decision to go to war? Wouldn’t that intelligence be limited to the gang of members on the consultation committee?

Mr. HAMILTON. With the consultative committee, I think you expand the number of members that would be brought into the dis-cussions involving the highest level of intelligence. In other words, you’d have more members involved, under our proposal, that you do now, because you have a——

Senator FEINGOLD. But—well, I was a—I was a relatively middle, junior member of the Foreign Relations Committee. It was not, at that time, a member of the Intelligence Committee.

Mr. HAMILTON. Yes. Senator FEINGOLD. At some point, I was afforded the opportunity

to go down to a secured room and to hear directly from the CIA people whether they felt the same thing that we were hearing pub-licly. And I’ve got to tell you, their tone, when they were trying to express these arguments that the President was making, was rather tepid. And it gave me a feeling that something was wrong here. And I would, apparently under this scenario, not have been a part of that process. Now, I’m not saying my role was critical, but I did end up being one of the people who went to the floor imme-diately and said, ‘‘I’m not buying this al-Qaeda connection. I’m not buying the notion that Saddam Hussein is likely or ready to attack the United States.’’ It appears that somehow somebody in my situa-tion would not necessarily be a part of that pre-, you know, mili-tary action process.


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Mr. Hamilton. Mr. HAMILTON. Well, I think, under the law today, the President

doesn’t even have to consult with Members of Congress before he takes you into war, because the provisions in the War Powers Reso-lution are very vague with regard to consultation.

We expand greatly the number of Members who would be involved in that consultative process here.

Senator FEINGOLD. It appeared, though, in this circumstance of Iraq, that this was part of the consultative process, that our access to the people from the President’s CIA was pursuant to a discus-sion that led to a vote of the full Senate.

Mr. HAMILTON. Well, the other—— Senator FEINGOLD. So, this was a process where all Members—

well, perhaps not all, but at least members of the Foreign Rela-tions—all members of the Foreign Relations Committee were given the opportunity to participate in that kind of——

Mr. HAMILTON. And the proposal that we’re putting before you— Members of Congress are required to vote on it.

The CHAIRMAN. Senator—— Mr. HAMILTON. You didn’t have that—you don’t have that

requirement, under present law. The CHAIRMAN. Yes, there is no requirement, under the present

law, at all. What happened is, we did it, under the prerogatives of each of the committees, because the committee chairs and ranking members understood that that was part of the responsibility.

Nothing in here—and we discussed before you came here—about this consultative component being strictly in fulfillment of the requirement that the President let us know what he’s thinking of doing so that those other committees—that’s why each of them are part of it—the Intelligence Committee, the Armed Services Com-mittee, the Foreign Relations Committee—would then go about their normal business of involving all of their members. I mean— but, there no statute that required that for you, either, at this point.

Senator FEINGOLD. I’d like to believe that, Mr. Chairman, but it strikes me that this provides an opportunity, that the President doesn’t currently have, to say, ‘‘Look, I went to this consultative process that’s provided by this new statute, so I have even less need to go through a formal vote,’’ which, you know, as we just talked about, most Presidents have decided—President Bush, on the first gulf war, even though he may not have taken the view that he had to do it, he went ahead and did it. I think this creates a process that could end-run the feeling on the part of a President that he needs to go through a process that would actually involve this kind of participation. But, I’m not saying this doesn’t literally require it. It’s what——

Mr. BAKER. But, Senator—— Senator FEINGOLD. [continuing]. Effective—yes, Mr. Baker. Mr. BAKER. [continuing]. We require a vote within 30 days, so

the President is going to be facing a vote of the Congress. And if the vote is a Resolution of Disapproval, that’s going to have very serious adverse impacts on the President’s ability——

Senator FEINGOLD. But, in the case of Iraq, of course—— Mr. BAKER. Well, that—of course, you know——


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Senator FEINGOLD. Thirty days after it would have been not too helpful.

Mr. BAKER. Well, that’s true, but the President—both Presidents went to the Congress to get approval, and actually obtained approval.

Now, back to the point you made about the observance of a stat-ute duly enacted and whether a President can question its constitu-tionality, they’ve—there’s always been the ability of Presidents to question constitutionality. And in this area, it has consistently been questioned by both Democratic and Republican Presidents.

Presidents have sent troops abroad, Senator Feingold, 264 times, during which period the Congress has declared war 5 times. So, we’re faced with a situation—we expressly—I think, before you arrived, we made it—we had a dialogue here about the fact that we have expressly preserved the rights of Congress to make the ar-gument that I think you’re making, and the right of the President to make the argument that all Presidents have made since the War Powers Resolution was passed, that the Constitution gives either (A) the Congress the authority, or (B) the President the authority. So, we expressly reserve those constitutional arguments, put them to the side, because they are not going to be solved in the absence of a constitutional amendment or a Supreme Court opinion. So, we don’t prejudice either branch. What we’re trying to do is find a workable solution here that will improve the relationship and the consultation that takes place between the President and Congress when the Nation’s going to war.

Senator FEINGOLD. I respect the effort, and I respect the intent. And it may well work that way. My concern—and I know my time’s up, Mr. Chairman——

The CHAIRMAN. No, take your—no problem. Senator FEINGOLD. [continuing]. Is that I witnessed, as a non-

Senator, the excellent debate that was held on the floor of the United States Senate prior to the first gulf war. I also was involved in the truncated and, unfortunately, weak debate prior to the Iraq war. But, any process that could somehow make a President feel that he did not need to go through that process prior to such a major action would trouble me. So, that’s how I need to review this. Could this lead to that practical effect, as opposed to the literal effort you have made to avoid such a consequence?

Mr. BAKER. Well, I don’t think so—— Senator FEINGOLD. That is the nature of my concern. Mr. BAKER. Well, my—let me just quickly answer it. I don’t

believe so, because the President has that power today. So, we’re not—in this effort, we—I don’t see this as giving the President something he doesn’t have today.

Senator FEINGOLD. Thank you, Mr. Chairman. The CHAIRMAN. Thank you, Senator Feingold. Those are—an im-

portant inquiry, and I think it’s worth examining the sort of Iraq experience, in terms of the vote up front versus late.

But, there may be some way, Mr. Secretaries and Mr. Chairman, in terms of the definitions—I know you all have struggled with this, and maybe we can spend a minute sort of reviewing that, as to whether you can, you know, cover those rare circumstances where you have such a level of deployment and such a level of con-


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frontation—i.e., I mean, the invasion of a country is a pretty big deal. There ought to be some way—I mean, that is certainly sepa-rate-able from about 200-and-some of those instances of use of force. And so, maybe there’s a way to try to have a balance here, and I think we ought to sort of examine that.

At any rate, are there any further questions from any colleagues? [No response.] The CHAIRMAN. There will be some questions for the record, if

you don’t mind. I think we want to try to fill this out a little bit. And so, I’m going to leave the record open for a week, and if you— I hope we don’t overly impose on your goodwill here, but I think there will be a few questions for the record that might be helpful.

Mr. BAKER. Chairman, we’ll be glad to respond to those questions.

The CHAIRMAN. Again, we really thank you. This is just a huge and complicated topic, as we can see, but I think you’ve made a major, major contribution to our thinking about how to proceed for-ward and we want to work with you very closely to see how we can take this further. So we thank you for coming today.

Mr. BAKER. Thank you, sir. The CHAIRMAN. We stand adjourned. [Whereupon, at 11:38 a.m., the hearing was adjourned.]

ADDITIONAL QUESTIONS AND ANSWERS SUBMITTED FOR THE RECORD

RESPONSES OF HON. WARREN M. CHRISTOPHER TO QUESTIONS SUBMITTED BY SENATOR RUSSELL D. FEINGOLD

Question. Mr. Christopher, in your view, since 1973, have past Presidents always sought advance congressional approval of military operations in all situations in which such approval would have been feasible?

Answer. Presidents have not always sought advance congressional approval for military operations, including the sorts of operations defined under our proposed statute as ‘‘significant armed conflicts.’’ Examples of Presidents not seeking or ob-taining formal approval would include the military actions in Grenada in the 1980s and Panama in the early 1990s. And while President Clinton sought congressional approval for the military actions he initiated in the former Yugoslavia in the 1990s, no express approval was obtained before those significant armed conflicts began. In other instances, of course—including both Iraq wars and the war in Afghanistan— Presidents have obtained advance approval. However, even when there has been advance approval or consultation—and this goes back to the Vietnam war and before—there have been claims that the consultation or approval was rushed or based on incomplete information. Also, there have been charges that the consulta-tion after Congress gave the initial approval has been lacking, either through fault of the President or Congress.

In any event, the focus of our proposed statute is to ensure a meaningful exchange of views and formal consultation, both at the outset, and throughout any conflict in which the country engages. We call for Congress within 30 days of the initiation of a significant armed conflict to vote up or down on the action, so its will is known. We believe that the Joint Congressional Consultation Committee that our statute creates will allow the President to share information with the Congress more directly and obtain its meaningful, independent advice. We also think the full Con-gress will work with the Joint Committee and its members to obtain the necessary information to vote on resolutions of approval or disapproval. The Joint Committee will also serve as a conduit for the full Congress and its Members to express their views to the White House.

All in all, we think our proposed statute will significantly improve the current state of affairs. We do not believe the War Powers Resolution of 1973 has encour-aged or facilitated meaningful consultation (just the opposite). And we do not believe the 1973 law has encouraged or compelled Presidents to seek congressional approval.


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Question. Mr. Christopher, the consultation and approval procedures of your bill only apply to significant armed conflict which does not include ‘‘limited acts of re-prisal against terrorists or states that sponsor terrorism.’’ Given that the use of military force against another government could provoke an extended military con-flict and is defined as an act of war under the laws of armed conflict no matter how ‘‘limited’’ it may be, wouldn’t it be preferable to seek prior congressional approval whenever possible?

Answer. Prior approval is usually ideal for a number of reasons, but sometimes it is impossible to obtain as a practical matter because of the need for secrecy or other emergent circumstances. Most constitutional scholars agree that the President has some latitude to act unilaterally to protect the country’s interests. Section 4(A) of our proposed statute encourages the President to consult regularly with the Joint Congressional Consultation Committee, even with regard to such matters.

Our statute recognizes, however, that even short, swift military actions can lead to longer engagements. Thus, sections 3(A)(ii) and 4(B) require the President to con-sult and trigger the congressional voting mechanisms in section 5 in the case of ‘‘any combat operation by U.S. armed forces . . . expected by the President to last more than a week.’’ One might cynically argue that Presidents will purposefully under-estimate the time required for a particular operation so as to avoid the consultation and voting requirements in sections 4 and 5. However, any statute in the war pow-ers area must, at some level, assume the good faith of the parties involved, and Con-gress always has political means at its disposal to address such concerns. The enforcement provisions established in the 1973 resolution, while defended as good policy by some, have never been invoked by the full Congress or enforced by the courts.

In any event, section 4(B) of our proposed statute makes clear that if a ‘‘limited act of reprisal against terrorists’’—one of the sorts of actions described in section 3(B) of the statute—‘‘becomes a significant armed conflict as defined in section 3(A) [by reason of lasting more than seven days], the President shall similarly initiate consultation with the Joint Congressional Consultation Committee,’’ pursuant to section 4, and section 5’s voting procedures are triggered as well.

Question. Mr. Christopher, do you believe that congressional authorization to fight al-Qaeda extends to the entire world, including, for instance, U.S. military strikes in Somalia? What are the limitations on the global use of such authorization and what is Congress’s role in defining those limitations?

Answer. The September 18, 2001, joint resolution that Congress enacted, Public Law 107–40, S.J. Res. 23, provides (italic added):

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Such hypothetical questions are hard to answer given the limited facts, but in light of the open-ended language of the joint resolution, if the President found there was an organization in Somalia that aided the September 11 attacks and that orga-nization posed a current threat, one could certainly argue that the authorization extends that far.

Congress can always limit or define the scope of its authorizations—either by time or geographic scope. Presidents may debate the constitutional force of such limita-tions, but Congress, in drafting its authorizations, controls the pen and can be as clear as it wants in what is being authorized. In the first Iraq war, for example, Congress authorized the President to take military action against Iraq, but limited the authorization to enforcing existing U.N. Security Council resolutions. Thus, once the U.S.-led coalition expelled Iraq from Kuwait, there was a strong argument to be made that had the armed forces deposed the Iraqi Government, the President would have been acting beyond his congressional authorization. Congress and Presi-dent Ronald Reagan’s administration also worked closely on the United States peacekeeping mission in Lebanon. After negotiations between congressional leaders and the White House, Congress specifically authorized American troops to remain in Lebanon for 18 months. During the Vietnam war, Congress passed measures, including what is known as the ‘‘Fulbright Proviso’’ in the War Forces-Military Pro-curement Act of 1971 that placed limitations on providing military support and assistance to the Governments of Cambodia or Laos. This Proviso was criticized, however, as being unclear. In recent years, Senator Byrd, for example, proposed a


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sunset, or time, limitation on the recent Iraq War Authorization. That amendment was rejected.

RESPONSE OF HON. LEE H. HAMILTON TO QUESTION SUBMITTED BY SENATOR RUSSELL D. FEINGOLD

Question. Mr. Hamilton, in your view, were the consultations with the Gang of Eight on President Bush’s warrantless wiretapping and interrogation programs suf-ficient to ensure adequate oversight? If not, would we be well advised to extend a similar oversight structure of the power to go to war?

Answer. Our Commission has gone out of its way not to call balls and strikes, particularly concerning recent events.

The Gang of Eight structure is different than the one proposed in our statute. We propose involving a larger group (20 key leaders in Congress from both sides of the aisle) and requiring up-or-down votes of the whole Congress concerning any signifi-cant armed conflict, as well as smaller conflicts that grow into significant ones. We think our procedure provides not only a considerable amount of oversight, but a good and productive forum for the open and timely exchange of views.


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